Halloween tonight

Halloween tonight

Hat-Tip to James at Nourishing Obscurity for the photo

UPDATE: 19.30 I hope that is the last of the trick or treaters. They've been coming since Thursday night! Tonight all the sweets have gone, and even my peanuts! I don't get my pension until tomorrow. Bah humbug! It will soon be the carol singers...

How can the ECtHR sweep this elephant under the carpet?

How can the ECtHR sweep this elephant under the carpet?

Perhaps the ECtHR will go back on the Hirst judgment and all will be swept under the carpet?

European Court vs the UK: the consequences of ignoring judgments

European Court vs the UK: the consequences of ignoring judgments

By Leon Glenister in Human Rights Act, Right to vote

It is no secret that there has been a frosty relationship of late between the European Court of Human Rights (‘ECtHR’) and the British government. Dominic Grieve this week announced his intention to go to the ECtHR to fight their decision on prisoner voting. The question arising is: what happens where the European Court disagrees with (1) Parliament or (2) the UK Courts?

The legal backdrop

Let’s take a brief legal history on this topic. The UK signed the international treaty that is the European Convention on Human Rights and Fundamental Freedoms (‘ECHR’) in 1950. This places an obligation on Parliament, in international law, to secure to individuals the rights contained within it. It also set up the ECtHR, based in Strasbourg, which would give individuals somewhere to go if their rights were infringed. Until 2000 individuals would have to go to the ECtHR to enforce their rights in the ECHR.

All this changed in 2000 when the Human Rights Act came into effect, which imported the Convention rights into domestic law by giving the UK courts certain powers to enforce them. Most notably, if a public authority breached a right, the individual could bring a claim against the authority in the UK courts. The Act also placed a duty on the court to “take into account” any case law from the ECtHR when deciding cases.

So what happens where either the UK Parliament or courts just plainly disagree with Strasbourg?

Parliament

The simple answer is that if the UK does not protect individuals ECHR rights, then that will put the UK in breach of its international obligations. But, that is the simple answer.

The ECtHR has itself attempted to guard against this kind of direct conflict with the ‘margin of appreciation’ doctrine. When deciding cases, this doctrine gives states leeway in how they apply rights. But this has not been enough in the issues where the UK plainly disagrees with the ECtHR.

In recent times the government has come to blows with the ECtHR over whether a ban on prisoner voting breaches the Convention. In 2005, the ECtHR ruled that the blanket ban was a breach of the right to vote. Dominic Grieve this week said he would go to Strasbourg to argue a wider margin of appreciation on this issue.

David Pannick has interestingly argued that, where there is a disagreement, the onus should be on the ECtHR to give clear, persuasive and lucid reasoning. He has stated the court is not only there to decide, but also to persuade.

If the UK fails to implement these decisions though, there are unwelcome consequences. As Thorbjorn Jagland, Secretary-General of the Council of Europe, yesterday warned, a lack of respect for rights in Britain could send waves around Europe to countries such as Russia and Turkey who will be less inclined to respect rights.

Two other consequences are of note. Firstly, Protocol 14 last year came into force, which allows referrals by the Committee of Ministers to the Grand Chamber where there has been non-compliance with an ECtHR decision by a state. The UK could be a prime target for such a referral; although in practice doubtful, Alex Bailin and Alison McDonald have suggested a potential sanction could be suspension or expulsion for the Council of Europe. Secondly, we must not forget this could have an effect on the UK’s underlying financial situation through the EU. Membership of the EU is conditional on ratification of the ECHR; it is possible that any issues the UK has with the ECtHR could have a knock on effect on their EU membership status.

A final note on this issue should be made on a suggestion of the Bill of Rights Commission, on how to deal with a clash between the ECtHR and Parliament, which is the ‘democratic override’. This would allow politicians to overrule a ECtHR decision. An excellent critique of this proposal has been written by ObiterJ, but suffice it to say here that there are obvious dangers in leaving rights protection to backroom politics.

The courts

For the domestic courts, the answer where they disagree with the ECtHR is simple. It is trite law to say domestic courts are bound by an incorporating statute rather than an international treaty. As such, the court must abide by the Human Rights Act over the ECHR. The Act states that they must “take into account” the ECtHR case law; there is no obligation to do so. The consequences of not giving full effect to rights are solely for the government in international law, and not for domestic courts.

It is therefore unsurprising to find Lord Judge last week commenting that the UK courts “are not bound by” the ECtHR. This was demonstrated in the case of Horncastle, where the House of Lords ruled the hearsay evidence laws of the UK did not breach the right to a fair trial of the defendant, despite a contrary conclusion by the ECtHR in Al-Khawaja.

Conclusion

In terms of the relationship Britain has with the ECtHR, we have hit a conflict zone. What will happen is probably going to be more to do with politics than anything else. Perhaps the ECtHR will go back on the Hirst judgment and all will be swept under the carpet. But the UK does need to take these rights seriously; our common law is built on rights and if we don’t respect them, who else will?

Jailhouselawyer to take on Attorney General Dominic Grieve at the ECtHR

Jailhouselawyer to take on Attorney General Dominic Grieve at the ECtHR

It’s a case of the universality of human rights on the one scale and UK sovereignty on the other

It is morally right that we should have human rights. Taking this moral foundation convicted prisoners have the high moral ground and the UK the low, and the Court’s interpretation of the Convention’s human right to vote conforms to this higher standard. In my case, Hirst v UK (No2), the UK had argued that by committing offences which led to custodial sentences convicted prisoners had lost the moral authority to vote. The Court rejected this argument. When the expenses scandal broke Lord Carey, the former Archbishop of Canterbury, opined that Parliament had lost the moral authority to govern. Moral authority is not a criterion for the franchise. There is no moral authority to fiddle expenses.

Protocol 11 of the Convention came into force 1 November 1998. “Article 36 - Third-party intervention: 2. The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings”. This is the rule Dominic Grieve invoked, and it is the same access to the Court which I applied. Equality of arms. I am a human rights defender, whereas the UK is a human rights abuser. I am defending the high moral ground and a legal victory, the UK just because it did not expect to lose behaved, and is still behaving, unreasonably by ignoring the Court’s judgment. "The only one whose expectations might be defeated by an unpredicted finding of a violation is a government that does not equally respect the freedom of its citizens”. The UK lost its appeal in my case and that decision is final. So, why is the UK joining Scoppola v Italy?

Why did the Grand Chamber not reject the Attorney General’s request given that it is arguable that it is not in the interests of the proper administration of justice to let him make representations? Ever since Magna Carta it has been accepted that no man should be denied justice; and this includes the principle that justice delayed is justice denied. For over 6 years I have been denied justice by the UK failing to implement the decision, and by the Committee of Ministers of the Council of Europe failure to effectively supervise execution of the judgment. Perhaps, even failed by the Court itself?

David Lidington, the Minister for Europe, stated in the Commons: “The Court is an essential part of the system for protecting human rights across Europe. But it is struggling with its huge, growing backlog of applications—now over 155,000. At times it has been too ready to substitute its own judgment for that of national courts and Parliaments. This situation undermines the Court’s authority and effectiveness. Concrete measures to improve the Court’s efficiency are urgently required.” He failed to mention that 3,500 of this backlog have been caused by the UK’s failure to implement Hirst No2, and now other convicted prisoners too have demanded justice. What he fails to mention is that both the national courts and Parliament abdicated responsibility on the issue, therefore the Court had jurisdiction to hear my case once I had exhausted all domestic remedies. I had argued that the courts and Parliament was wrong on the issue of convicted prisoners’ human right to the vote. It is the UK that is seeking to undermine the Court’s authority and thereby its effectiveness. In my view, a concrete measures should include direct effect of its judgments into domestic law, and daily fines for non-compliance, and just satisfaction which placed a monetary value upon the loss of the vote. The UK in my case stated that it thought £1,000 would be the appropriate amount.

The Council of Europe uses the European law subsidiarity principle. Kenneth Clarke and Dominic Grieve have both stated that they support this. According to this principle it is primarily the national authorities’ responsibility to ensure that the Convention and Court decisions are implemented by the State to provide an individual remedy for the breach and prevent further breaches. If it is a failing State, like the UK, then the Court, Council of Europe Committee of Ministers (and even the EU) can step in to remedy the breach. The Court also allows Member States a margin of appreciation. For example, whether to place polling booths in prisons or provide for postal votes. Depending on individual cases the Court might state that there is a narrow or wide margin of appreciation. It is not so wide as to allow the UK to decide who is and who is not a human being entitled to human rights, this would be contrary to Article 1; nor so wide as to defeat the purpose of Article 3 of the First Protocol providing for free elections.

"In reading the Court’s judgments, one often forms the impression that the doctrine of the margin of appreciation is a device used to defer to the judgment of national authorities, particularly when the legal issue before the Court is politically sensitive and there is likely to be significant political opposition by the respondent state to the Court declaring a violation".

The UK has opposed the Court’s judgment. This defiance of human rights, democracy and rule of law is not justified in a so-called liberal democracy. The UK entered into a contract with other Member States to honour its legal and moral obligations. The UK should do the right thing. Domestic law is there to both punish transgressors and protect the weak from abuse by the powerful State. No amount of arguing is going to turn this wrong around to a right to deprive prisoners of the residual liberty to vote. All those who support the legal principle of the liberty of the subject should not support this denial of freedom for prisoners to have a voice in Parliament. When it comes to necessary reforms sometimes Parliament is weak willed. Corruption needs to be rooted out. Jimmy Savile has been credited with inventing the music style hip hop. In this case, what we need is Honesty In Politics: Honesty of Politicians. Lead by good and not bad example. If it is accepted that human rights are fundamental in the rest of Europe, it follows that they are no less important in the UK. As Bob Marley sings “Get up, stand up, stand up for your rights”.

Commonwealth leaders under fire for refusing to publish human rights report

Commonwealth leaders under fire for refusing to publish human rights report

Heads of government slammed as disgraceful and the summit labelled a failure over indifference to recommendations

"Commonwealth leaders have been accused of behaving disgracefullly after they declined to publish an "Eminent Persons Group" (EPG) reportcalling for the 54-nation body to improve its handling of human rights".

What is wise about the human rights abusing UK agreeing with the human rights abusing Albania and Ukraine?

What is wise about the human rights abusing UK agreeing with the human rights abusing Albania and Ukraine?

Oliver Heald (North East Hertfordshire) (Con):

27 Oct 2011 : Column 558

In conclusion, it is very wise of the Government to have reached agreement with Ukraine and Albania—the countries whose periods of chairmanship are on either side of ours—because that means that, over an extended period of 18 months, the chairmanship can concentrate on some issues and get a result. I wish the Government well and hope that the Interlaken process is the success that it should be. The fact that 47 countries are involved, the largeness of the geographical area covered, and the way in which the organisation is led mean that if something is done right in one country, best practice can be spread right across Europe.

Wise to reach agreement with countries abusing human rights?

Ukraine:

Until very recently human rights in Ukraine were better than those in most former Soviet republics and Ukraine was labeled as "free" by organizations such as Freedom House.[1] However in 2011 Freedom House labeled Ukraine "Partly Free".[2] Amnesty International also signalled a significant deterioration of the observance of human rights in Ukraine in 2011.

Albania:

Current issues concerning human rights in Albania include domestic violence, isolated cases of torture, and police brutality, the general condition of prisons, human and sex trafficking and LGBT rights.

UK you are known by the company you keep...

Human rights in the United Kingdom are set out in common law, with its strongest roots being in the English Bill of Rights 1689, as well as the European legislation. At the same time, the UK has also had a history of both de jure and de facto discrimination, and, in recent history, occasional violations of basic human rights, particularly in times of national security crises.

David Lidington the Minister for Europe misleads Parliament (part 2)

David Lidington the Minister for Europe misleads Parliament (part 2)

Council of Europe (UK Chairmanship)

The Minister for Europe (Mr David Lidington): On 7 November, the UK takes over from Ukraine the chairmanship of the Committee of Ministers of the Council of Europe. The chairmanship is a rare opportunity for the UK to play a leading role in the vital work of the Council of Europe in promoting rights, democracy and rule of law across the continent.

The Council of Europe is dedicated to the protection and promotion of human rights, the rule of law and democracy across 47 countries and 800 million citizens. The UK was a founder member in 1949, and the first country to ratify the European convention on human rights (ECHR), the Council of Europe’s best-known

26 Oct 2011 : Column 9WS

instrument, two years later. The ECHR was developed in post-war Europe to try to offer people basic protections from tyranny—such as the right to life, freedom from torture and freedom of speech. These rights are still fundamentally important today.

Yesterday I met Thorbjørn Jagland, Secretary-General of the Council of Europe, to discuss the UK’s chairmanship priorities. I am pleased to say that he supports fully our proposals. Each incoming chairmanship issues a priorities document shortly before their tenure begins. I have now done so and have placed a copy in the Library of the House.

The overarching theme of our chairmanship will be the protection and promotion of human rights. The Government have repeatedly made it clear that human rights are central to their foreign policy. We aim to be an example of a society that upholds human rights and democracy, and we are committed to strengthening the rules-based international system.

First and foremost, we will drive forwards the ongoing programme of reform of the European Court of Human Rights. The Court is an essential part of the system for protecting human rights across Europe. But it is struggling with its huge, growing backlog of applications—now over 155,000. At times it has been too ready to substitute its own judgment for that of national courts and Parliaments. This situation undermines the Court’s authority and effectiveness.

Concrete measures to improve the Court’s efficiency are urgently required. Moreover, it should be focusing on areas where the convention is not being properly applied or there is a need at European level for authoritative guidance on the correct interpretation of the convention. Where member states are applying the convention effectively, the Court should intervene less.

With the joint leadership of my right hon. Friend the Secretary of State for Justice, under our chairmanship we will seek agreement to a package of reforms which would: help deal with the Court’s backlog; support better implementation of the convention at national level; introduce new rules or procedures to help ensure that the Court plays a subsidiary role where member states are fulfilling their obligations under the convention; and help to ensure the best possible procedures for selecting judges to the Court and promote consistency of judgments.

Reform requires the agreement of all 47 member states. We will accord the highest political priority to securing consensus to the necessary reforms by means of a political declaration at the end of our chairmanship. This declaration will set out the agreements we have reached on the reforms to be implemented, including—where necessary—by amendments to the procedural sections of the convention.

In addition, I have assured the Secretary-General that the UK will actively support his programme of reforms of the Council of Europe. We will work towards implementation of measures which will help to deliver more focused, streamlined and effective organisation and a more efficient budget.

The UK chairmanship will also give priority to a range of initiatives where we believe the Council of Europe can help to advance the UK’s foreign policy objectives:

26 Oct 2011 : Column 10WS

we will promote an open internet, not only in terms of access and content but also freedom of expression. This is an important policy priority for the UK and one of the issues being addressed at the cyber conference being hosted in London by the Foreign Secretary on 1 November. We will support the adoption of the draft Council of Europe strategy on internet governance, and the implementation of the principles it has adopted to uphold freedom of expression on the internet, to ensure that all member states live up to their international obligations in this area;

we will work to combat discrimination on grounds of sexual orientation or gender identity across Europe. The Government are committed to using their relationship with other countries to push for unequivocal support for the rights of lesbian, gay, bisexual and transgender people, including advocating for changes to discriminatory practices and laws that criminalise homosexuality in other countries. The Council of Europe has adopted recommendations on this issue and conducted a study on the situation in member states. We will work with the secretariat and our partners in the Committee of Ministers to improve all member states’ performance in this area;

we will work towards a more effective and efficient role for the Council of Europe in supporting local and regional democracy. The Council of Europe has a significant programme of activities in this area, including monitoring and sharing of expertise, which the UK supports but wants to see streamlined and more carefully targeted;

we will support the strengthening of the rule of law in the member states. We will work towards practical recommendations in this area, in co-operation with our partners in the Committee of Ministers, the secretariat and the Council of Europe’s advisory body on constitutional matters the European Commission for Democracy through Law (the Venice Commission).

David Lidington the Minister for Europe misleads Parliament, etc

David Lidington the Minister for Europe misleads Parliament, etc

David Lidington the Minister for Europe misleads Parliament

Hansard 27 Oct 2011 : Column 507

Sir Alan Meale (Mansfield) (Lab): Will the Minister confirm a bit of information? As he touched on earlier, there are about 800 million people, comprising 47 nations, in the greater European area. I hope that he will confirm for Members on both sides of the House that, on all the judgments that the Court has made so far, this country has never refused to endorse the Court’s findings.

Mr Lidington: Yes, the hon. Gentleman is right.

27 Oct 2011 : Column 522

Mr Walter:...My third point concerns the competence of the Court and its relationship with national Parliaments and sovereign member states. That the House debated and voted overwhelmingly against prisoner voting rights showed that we in this country feel that somebody committed to jail for an indictable offence should have their voting rights taken away while in prison. That is at variance with the judgment of the Court. I am not a lawyer, but in my view it is absolutely right that a court can sentence somebody to prison and so deny their liberty in several areas. In sentencing them to prison, we are not infringing most of their convention rights—for example, we are not infringing their right to life or imposing on them inhuman and degrading treatment. Instead, we are deciding to deny them certain liberties—for example, by not allowing them to go home to their family every night, we are denying them the right to a family life.

Mr Binley: Do the people sent to prison not have the choice about whether they go to prison, and should that not be a major consideration? Furthermore, is this not a constitutional right, rather than a human right? I know that that takes us on to aspects of law, but these are the things that make people very angry.

Mr Walter: Of course, my hon. Friend is absolutely right. This is the point that we are making. We could have a wider debate about why people commit crimes and why they go to prison, but my specific point is about the denial of liberty and what convention rights that denial of liberty impinges on. It is accepted that some rights in the convention can legitimately be denied. I am interested that Mr Hirst, when he went to Strasbourg, did not say that he was being denied the right to a family life by being in prison and ask why he could not have his wife and children there. He picked on one emotive issue—his voting and democratic rights—but I think that it is absolutely right that this Parliament decide the voting rights of prisoners, and if it decides that prisoners should not have a vote, so be it. That is part of our national sovereignty. It is a matter for national legislatures, not the Court.

Priti Patel:...This situation is made even more challenging to our democracy because no real mechanisms are in place for Parliament to reverse these European Court judgments.

27 Oct 2011 : Column 529

Michael Connarty: I have been listening to the hon. Lady expand on her point. I think she has got the matter wrong. When the European Court of Human Rights makes a judgment, it passes it back to the country of origin, which must then make proposals to try to fit in with that judgment. I understand that there is no intention on the part of the Government—supported by the Opposition, I hope—to give up their right in this matter entirely. They are being asked to define in which circumstances it is appropriate for someone to be not only incarcerated but deprived of their right to vote.

Priti Patel: I thank the hon. Gentleman for his remarks.

In February we debated the sovereignty and decision making of this House in relation to a particular judgment. By refusing to accept the sovereignty of our Parliament and the democratic decision making of this House, Europe is demonstrating a lack of legitimacy and democratic accountability, which I find astonishing given that the Council of Europe was established precisely to promote democracy. Therefore, in my view, attacking our Parliament and seeking to undermine our democracy is simply counter-productive.

The prisoner votes issue is just one well-known example of the problem—and it is still ongoing...

David T. C. Davies (Monmouth) (Con): My hon. Friend is making a number of excellent points. Does she agree that the human rights of violent criminals and terrorists are too often being put ahead of the human rights of law-abiding British subjects? She is right to draw attention to that.

Priti Patel: I thank my hon. Friend for making that point so clearly and succinctly. Our chairmanship of the Council of Europe is coming up and this is a big opportunity for us to address, if nothing else, the perception issues and the fact that we need to remain vigilant on these matters to ensure that powers and decision making stay in this country.

27 Oct 2011 : Column 530

In pulling my remarks together, I wish to emphasise to the Minister and the Government that there are issues to be addressed. Britain is signed up to a range of international agreements on human rights-related matters, which are all welcome and important. However, decisions on human rights laws must be brought back home, because having British courts interpreting British laws is a better and more democratic position than having European judges and their officials ignoring our national interest. It is unhelpful and counter-productive for them to be foisting their particular laws on us.

It is time to draw a line in the sand on many of these matters, and to free up our courts, our public bodies and, in particular, Parliament from some of the excessive intrusion and integration on human rights matters that we have seen. I hope that, through the chairmanship of the Council of Europe, the Government will take this opportunity to address these matters, in addition to the areas of priority that the Minister outlined.

27 Oct 2011 : Column 534

Mr Roger Gale (North Thanet) (Con):...Many of those countries, France in particular, are preaching to the United Kingdom and trying to tell us that we must give prisoners voting rights. We had that debate in this Chamber and reached a sovereign decision as a sovereign Parliament. I explained that in person to the Human Rights Commissioner, Thomas Hammarberg, the last time we were in Strasbourg. I said, “Tom, you must understand that this is a sovereign Parliament. This is not a Government decision, but a decision taken in the House of Commons by elected Members. We have decided that we do not believe that we have a duty to give convicted prisoners voting rights.” While that is an issue, we are told that other countries can hold citizens without trial for very long periods in breach of the convention.

I would like my right hon. Friend to take to the chairmanship and to Ministers this clear issue and say that we will not budge one inch until every country holding any citizen for an indeterminate period without trial has complied properly with the convention.

27 Oct 2011 : Column 535

Mr Stewart Jackson (Peterborough) (Con): Does my hon. Friend regret as I do the fact that, notwithstanding the Forfeiture Act 1870, which established the will of this House in respect of prisoner votes, and the emphatic vote in February, which made clear to Ministers and to the Court itself the settled view of the House, there has been only a suspension of the Court’s judgment on the UK situation with respect to Greens and M.T., as a result of an Italian case, and that the Court has not accepted the will of this House to decide that we are correct and will not give the franchise to convicted felons?

Mr Gale: I have already made my view abundantly plain: I regret the situation very much indeed. If there is any case to be made, it can only be this: a person on remand might be considered to have the right to vote, because they have not been convicted. I cannot have my cake and eat it, because, if I want people to have a fair trial and to be tried in a timely fashion, I have to concede that if people have not been convicted, they should arguably have the right to vote—but that is all.

27 Oct 2011 : Column 538

Bob Stewart: I have a question because I am slightly ignorant on the procedures. If a judgment came back to this House and this House decided that it would not accept it, where do we stand then?

Michael Connarty: That is a very important question. If the Government should bring back a proposal on, for example, whether prisoners in custody should have voting rights, and we decided that we did not wish to accept it, we could reject it. They would have to come back again to try to put another proposal, and I presume negotiations would go on between the Committee of Ministers, particularly with our chairmanship in the next six months, to find something that would be suitable, and that would be correct. However, I believe—this is my own judgment—that if we got to the point where we said, “No, we refuse to implement this”, then there must be some question about whether we want to remain in the Council of Europe at all.

Mr Binley: The hon. Gentleman is a very dedicated member of the Parliamentary Assembly, and it is a pleasure to work with him. Does he recognise that at the end of the day the judgment goes to the Council of Ministers, and that equally at the end of the day they have no powers of enforcement? I relate that to the point made by my hon. Friend the Member for North Thanet (Mr Gale): nothing can be done, and therein lies one of the problems.

Michael Connarty: I think that is correct in what I have seen of the Council of Europe. It can make judgments, it can put down statements, people can support those statements, and they can be transmitted through the Committee of Ministers to the representatives of all the countries who send a representative to that Committee. One of the reasons I am quite a strong supporter of the European Union is that it can bring in directives, and has done so, as I shall mention later, in areas which are close to my heart and to the logic of why I am here as a representative of the people of my constituency. It has an enforceable power, mainly tied up with the economic power that lies in the EU rather than just the Court of Justice. But yes, I think that there is a need for a much more diligent pursuit of the matters raised by the hon. Member for North Thanet.

27 Oct 2011 : Column 568

5.34 pm

Mr Lidington: With the leave of the House, Mr Speaker...

As has emerged during the debate, there is a range of views about how human rights are best protected, and about the respective roles of national authorities and the European Court of Human Rights. That is, of course, one of the issues that we intend to address during our chairmanship. The principle that we will advance is that national authorities of member states—their Governments, legislatures and courts—have the primary responsibility to guarantee and protect human rights at a national level. The role of the European Court of Human Rights is subsidiary in achieving those objectives...

However, it is important to note that the corollary of the principle is proper implementation of the convention by national authorities. Of course the United Kingdom should still be subject to judgments of the Strasbourg court, but the court should not normally need to intervene in cases that have already been properly considered by national courts applying the convention.

Question put and agreed to.

Resolved,

That this House has considered the matter of the UK’s Chairmanship of the Council of Europe.

27 Oct 2011 : Column 575

Hitler was a human rights defender says Thorbjørn Jagland, Secretary General of the Council of Europe

Hitler was a human rights defender says Thorbjørn Jagland, Secretary General of the Council of Europe

No shock here, the Daily Mail writes a misleading headline:

Now even Europe’s human rights chief admits British Bill of Rights is ‘the right thing to do’

Thorbjørn Jagland, Secretary General of the Council of Europe

The end of the first paragraph of the article reads "could be the ‘right thing to do’". Could replaces "is".

"Thorbjørn Jagland, secretary general of the Council of Europe, said he would accept the Tories’ plan to scrap the Human Rights Act – if the idea was to enshrine the convention in UK law".

"But he warned that if the UK was seen to turn away from the European Convention, it could harm the promotion of human rights in other states".

"Mr Jagland was in London to meet Coalition ministers ahead of Britain’s assumption of the rotating presidency of the 47-member European Council, which is the guardian of the ECHR".

"In an interview with the Financial Times, Mr Jagland said he was sanguine about the plans – as long as the convention itself is not infringed".

"He said: ‘If the UK with its long-standing tradition as a human rights defender were now to be perceived as calling the convention into question, this could have a negative knock-on effect in other countries.’".

Mr Jagland also singled Mr Clarke out for praise. ‘He is not only open [to ideas], but he understands, of course, very well why we have this Europe we have today, why we have to protect human rights,’ he said. ‘In addition to being intelligent, he is also very wise. So it’s easy to work with him.’

Kenneth Clarke looking like an English pot bellied pig.

Part of a

Speech by Thorbjørn Jagland
Secretary General of the Council of Europe
High-Level Conference
on the future of the European Court of Human Rights,
18 February 2010, Interlaken

"But as high and as steep as these mountains may be, we must and we shall conquer them. We owe this to the people of Europe who have the right to expect that we shall succeed in safeguarding the mechanism which has looked after their human rights over the past half a century. I do not think that I am overly dramatic when I say that what is at stake is not only the effectiveness but the survival of the European Court of Human Rights".

"Above all, we need a better and more systematic use of the principle of subsidiarity. State Parties have the primary responsibility to respect human rights, to prevent violations and to remedy them when they occur.

All States parties have now incorporated the Convention into their national legal systems, but not all have done so with satisfactory effect".

"What we need to achieve is a genuine structural integration of the Convention into national systems, in order to secure its direct application; we need a better implementation of its provisions, including, above all, the obligation to provide effective domestic remedies for alleged violations.

The Convention cannot be fully and effectively implemented at national level unless the authority of the Court’s case-law is properly recognised in the national legal order.

Most obviously, States must promptly and fully execute judgments in cases to which they are party, including any general measures that may be required.

But that is not all. National authorities must also take sufficient account of the general principles in the Court’s case-law that may have consequences for their own law and practice. There is much room for improvement here in many countries".

Comment:

It will come as no shock that Thorbjørn Jagland did not say Hitler was a human rights defender. However, for him to say that the UK has a long-standing tradition as a human rights defender is being disingenuous to say the least. What is long-standing is the failure by the UK to fully comply with the Convention and implement Hirst v UK (No2). The Minister of State responsible for this failure is Kenneth Clarke. So, it beggars belief that Thorbjørn Jagland singled Mr Clarke out for praise. Nazi Germany also had a Ministry of Justice.

I emailed Thorbjørn Jagland's press officer:

Hi Flemming

Given that the UK is taking over chairmanship of the Committee of Ministers and has recently published its Priorities and Objectives, can you confirm or deny that the Secretary General raised the issue of the UK’s failure to comply with the Court’s judgment in Hirst v UK (No2), and if so what he said and what was the UK’s response?

Yours sincerely

John Hirst

I received the following unsatisfactory reply:

Dear Mr Hirst,

Mr Kjerschow has asked me to reply to your email today. The Secretary General general did not raise the UK's position on individual court cases with members of the UK government during his visit to London on Tuesday.

Kind regards
Daniel Holtgen
Communications Directorate

I felt it warranted another email:

Dear Daniel

Individuals or Member States challenging Member States go to the ECtHR,
therefore I can see no legitimate reason for the Secretary General not to
raise an individual case which the UK has deliberately ignored for over 6
years.

I contend that the Secretary General owes me a duty of care, and that he was
negligent by not raising the issue.

The UK has made a public statement "The overarching theme of our
Chairmanship will be the promotion and protection of human rights".

Surely, this includes convicted prisoners or is the Secretary General
excluding them from being human beings and entitled to the protection
guaranteed under the Convention?

I look forward to your response.

Kind regards

John Hirst

The Joshua tree of knowledge struck by lightening and the gutter press

The Joshua tree of knowledge struck by lightening and the gutter press

Joshua Rozenberg

Dominic Grieve takes on the European court of human rights (Headline)

Under government plans, countries would not only implement human rights law but interpret it – and decide if they complied (sub-heading)

"The attorney general, Dominic Grieve, said the European court of human rights should not interfere on issues such as votes for prisoners" (text beneath photo).

"What do you understand by the word "subsidiarity"? Lawyers may recognise it as a principle of European Union law – that the EU should legislate only if action by individual states would be insufficient".

I have no idea whether Joshua Rozenberg is the author of the headline. It is what I would expect from The Sun, Daily Mail and Daily Express, but not what I would expect form a broadsheet once described as a quality newspaper. Is it accurate? No. Rather it is the kind of spin Joseph Goebbels the Nazi Propaganda Minister might have published to hide the truth. What then is the truth? Simply that Member States or NGOs with the leave of the Court are permitted to join an application before the European Court of Human Rights as an interested party in a particular case. In this case it is Scoppola v Italy, before the Grand Chamber. It is a prisoner votes case in which the Chamber reached a decision relying upon the leading case Hirst v UK (No2). Frodl v Austria relied upon my case, as did Greens and MT v UK (the UK sought to appeal against Greens but the Grand Chamber refused permission). Italy is appealing against the decision and not the UK appealing against the decision, therefore it is inaccurate, to say the least, that "Dominic Grieve takes on the European court of human rights". If I was a judge of the Grand Chamber I would question Dominic Grieve as to his intention to challenge the Court, and if he answered in the affirmative I would order him to leave the Court and if he refused I would get the Court security to remove him. Recently 2 newspapers faced contempt of court proceedings for misreporting a case. I would suggest that the Guardian tread very carefully because the courts are fighting back against media misreporting.

The same applies for the sub-heading, it may or may not be written by Joshua Rozenberg. Whatever plans the government has, because our jurisdiction remains within the UK we cannot dictate to other countries what they should or should not do on the issue of human rights law. This is like Hitler dictating all over again. We should be afraid, very afraid at the turn the extreme right wing Tories are taking this country. The Convention was drafted precisely to stop totalitarian or authoritarian regimes ever again taking control in Europe. Interpretation of the Convention is the sole preserve of the ECtHR. And interpretation of the Court's judgments is a matter for the Council of Europe, and not Member States, particularly those that have been found guilty of human rights violations like the UK, but if a Member State seeks an interpretation then an application must be lodged with the Committee of Ministers and the CoM will decide whether it is necessary to approach the Court for guidance upon interpretation.

Once again, I don't know whether Joshua Rozenberg wrote the text beneath the photo. If Dominic Grieve said what is claimed then it begs the question, why the government's top law adviser is Dominic Grieve and not somebody more competent on the subject? The UK signed up to allow individual petitions to the ECtHR. My individual petition related to the subject of prisoners human right to the vote. My challenge was against the UK. The UK signed up to accept that the ECtHR has jurisdiction to decide cases, and signed up to accept the binding nature of the Court's decisions. Isn't it the case that Dominic Grieve should not be interfering in the jurisdiction of the Court but should instead be telling the UK it must fully comply with the Hirst No2 judgment?

Joshua Rozenberg did write the bit on subsidiarity, but I suspect that he merely read the Wikipedia stub on the subject. I don't believe that he understands what it means. He is right in so far as he states that the subsidiarity principle is a Europen law. But not simply EU law. And "that the EU should legislate only if action by individual states would be insufficient" is inaccurate and not worthy of any marks for interpretation under "O Level" standard. Must do better!

For those really interested in the subsidiarity principle you can learn something about it here.

Joshua Rozenberg legal commentator steals comment from Jailhouselawyer

Joshua Rozenberg legal commentator steals comment from Jailhouselawyer

"Moreover, that the UKSC wants to be judge, jury and executioner in its own cause" (see my comment).

I contend that Joshua Rozenberg is doing a Johann Hari!

"But let's not suddenly pretend that acting as judge and jury in your own cause is a long-standing principle of human rights".

Secretary General in London ahead of UK chairmanship

Secretary General in London ahead of UK chairmanship

25/10/2011

In London today for talks with the UK government ahead of its chairmanship of the Council of Europe, the Secretary General met with Deputy Prime Minister Nick Clegg. He also met the Secretary of State for Justice, Kenneth Clarke, Foreign Office Minister for Europe, David Lidington and members of the UK delegation to the Parliamentary Assembly.

Discussions concentrated on reform of the European Court of Human Rights which is one of the UK's priorities. The UK takes over the chairmanship of the Council of Europe for six months on 7 November; the government published its chairmanship programme on Wednesday, 26 October.

Comment: I have emailed the General Secretary's media spokesman.

Hi Flemming

Given that the UK is taking over chairmanship of the Committee of Ministers and has recently published its Priorities and Objectives, can you confirm or deny that the Secretary General raised the issue of the UK’s failure to comply with the Court’s judgment in Hirst v UK (No2), and if so what he said and what was the UK’s response?

Yours sincerely

John Hirst

United Kingdom Chairmanship of the Committee of Ministers Priorities and objectives

United Kingdom Chairmanship of the Committee of Ministers Priorities and objectives

CoE UK Priorities Document

Execution of judgments of the European Court of Human Rights

Execution of judgments of the European Court of Human Rights

Parliamentary Assembly of the Council of Europe Resolution 1226 (2000)[1]

1. The Assembly considers that the European Convention on Human Rights (hereafter referred to as "the Convention") offers a unique mechanism for the protection of human rights and contributes substantially to maintaining democratic security and to the principle of the rule of law throughout the European continent. In order to maintain this standard of protection, it is essential that states fully comply with their formal undertaking to abide by the final judgments of the European Court of Human Rights (hereafter referred to as "the Court") in cases to which they are parties.

2. The system of the Convention is based in particular on two principles: subsidiarity and solidarity. The principle of subsidiarity implies that the primary responsibility for ensuring the rights and freedoms laid down in the Convention rests with the national authorities. Only if they fail to fulfil their responsibility is the Court called upon to take a decision.

3. The principle of solidarity implies that the case-law of the Court forms part of the Convention, thus extending the legally binding force of the Convention erga omnes (to all the other parties). This means that the states parties not only have to execute the judgments of the Court pronounced in cases to which they are party, but also have to take into consideration the possible implications which judgments pronounced in other cases may have for their own legal system and legal practice.

4. The Committee of Ministers, according to Article 46.2 of the Convention, supervises the execution of the Court's judgments. Furthermore, Article 52 of the Convention provides that "On receipt of a request from the Secretary General of the Council of Europe any High Contracting Party shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention". However, the Convention does not provide for a sanction in a case where a state does not execute a judgment of the Court. The measures to be taken in such cases are those foreseen in the Statute of the Council of Europe, in particular in its Article 8.

5. The Assembly is concerned that the execution of some judgments is causing considerable problems that threaten to undermine what has been achieved over the fifty years during which the Convention has operated. Some judgments of the Court have still not been executed several years later.

6. The Assembly is of the view that the responsibility for this situation rests mainly with the states parties which must execute the Court's judgments. In that regard, members of national delegations to the Assembly have a role to play. However, the Court, whose judgments are sometimes not sufficiently clear, and the Committee of Ministers, which does not exert enough pressure when supervising the execution of judgments, share part of the responsibility.

7. In spite of some progress made in giving direct effect to the Court's judgments, the present situation gives cause for serious concern. On the one hand, the Court faces an increase in the number of cases due to the accession of a number of new member states; on the other, the situation is aggravated by the numerous cases which relate to violations of human rights which have already been judged, but the judgments of which have not been followed by the necessary reforms which would avoid further violations.

8. The problems of implementation are at least seven-fold: political reasons; reasons to do with the reforms required; practical reasons relating to national legislative procedures; budgetary reasons; reasons to do with public opinion; judgments which are casuistical or unclear; reasons relating to interference with obligations deriving from other institutions.

9. The possible solutions are at both national level and Council of Europe level.

10. At national level:

i. legislators should ensure that new legislation fully complies with the Convention;

ii. governments should take the necessary action to execute the Court?s judgments in order to avoid any recurrence of violations;

iii. governments should remedy the applicant's individual situation and, where necessary, they should ensure that their legislation provides for the revision of a trial following a judgment of the Court;

iv. judges and administrators should work towards giving direct effect to the Court's judgments so that national court authorities can directly apply them;

v. national authorities should make sure that the Court's case-law is adequately circulated in the language(s) of the country;

vi. until definitive reforms come into effect, domestic authorities and courts should adopt interim measures.

11. At Council of Europe level:

A. the Committee of Ministers should:

i. amend the Convention so as to have the power exceptionally to ask the Court for a clarifying interpretation of its judgments in cases where the execution gives rise to reasonable doubts and serious problems regarding the correct mode of implementation;

ii. amend the Convention to introduce a system of "astreintes" (daily fines for a delay in performance of a legal obligation) to be imposed on states that persistently fail to execute a Court judgment;

iii. ask the governments of High Contracting Parties to make more use of their right to intervene in cases before the Court, so as to promote the clarity of the decisions of the Court;

iv. be more strict towards member states which fail in their obligation to execute decisions and take the measures provided for in Article 8 of the Statute in case of continued refusal;

v. ensure that measures taken are effective means of preventing further violations;

vi. keep the Assembly informed of progress in the execution of judgments, in particular by more systematic use of interim resolutions setting a timetable for carrying out the reforms necessary within signatory states in view of their execution;

vii. instruct the Secretary General to reinforce assistance programmes for the training of judges and lawyers in member states;

B. the Court should:

i. ensure that its judgments are clear and its case-law coherent;

ii. oblige itself to indicate in its judgments to the national authorities concerned how they should execute the judgment so that they can comply with the decisions and take the individual and general measures required;

iii. more frequently indicate in a judgment whether a previous judgment has not been executed at all, not been completely executed, or not been executed in time by the state concerned.

C. the Assembly decides to:

i. draw the attention of the public at large to the execution of judgments of the Court;

ii. keep a permanent updated record of the execution of judgments, noting:

a. the just satisfaction afforded to applicants;

b. any legislative or even, possibly, constitutional reforms needed to avoid further violations;

iii. hold regular debates about the execution of judgments, on the basis of the aforementioned permanent record, and in the case of the non-executed judgments referred to in this report, organise a debate within one year of the date of this resolution;

iv. adopt recommendations to the Committee of Ministers, and through it to the relevant states, concerning the execution of certain judgments, if it notices abnormal delays, or if the state in question has neglected to execute or deliberately refrained from executing the judgment ? if necessary holding an urgent debate to this end;

v. invite the parliamentary delegations of the states concerned to do their utmost to bring about the quick and efficient execution of judgments;

vi. invite the minister for justice, or another relevant minister of the responding state to give the Assembly an explanation in person, in case of refusal to execute a judgment or in case of excessive delays;

vii. consider as a reason to open a monitoring procedure the case of a member state refusing to implement a decision of the Court;

viii. envisage, if these measures fail, making use of other possibilities, in particular those provided for in its own Rules of Procedure and/or of a recommendation to the Committee of Ministers to make use of Article 8 of the Statute.

D. National delegations within the Assembly should be regularly informed about the Court's case-law and problems concerning the execution of judgments in their country.

12. Accordingly the Assembly:

a) invites the High Contracting Parties:

b) to take the necessary action to execute the Court's judgments in order to avoid any recurrence of violations;

c) in the case of a reasonable doubt as to the correct way a judgment should be executed, to make use of their right, in accordance with Article 79, paragraph 1, of the Rules of the Court, to request from the Court an interpretation of its judgment within a year of its delivery;

d) to ensure that new legislation fully complies with the Convention;

e) to take the necessary steps to give direct effect to the Court's judgments so that national courts can apply them;

f) to remedy the applicant's individual situation and to ensure that their legislation provides for the revision of a trial following a judgment of the Court;

g) to adopt interim measures until definitive reforms come into effect;

h) to proceed with the legislative, and if necessary constitutional, reforms required to bring their national legislation fully into conformity with the European Convention on Human Rights and the case-law of the Court;

ii. invites the national delegations to the Assembly to carefully follow the execution of judgments of the Court in which their governments are involved in their respective parliaments and to take all necessary measures for their quick and efficient execution.

[1] Assembly debate on 28 September 2000 (30th Sitting) (see Doc. 8808, report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr Jurgens).
Text adopted by the Assembly on 28 September 2000 (30th Sitting).

UKSC cries after being caught with its hands in the cookie jar!

UKSC cries after being caught with its hands in the cookie jar!

UK supreme court judges air concerns over having to follow Europe's lead

Rulings from Strasbourg human rights court 'sometimes too narrow' and interpretations are disputed

Comment:

Given that the UK Supreme Court is subservient to Parliament, it is a mockery to call it supreme.

Under European law there is the separation of powers, providing checks and balances with the 3 arms of the State to prevent abuse of power, in the UK we only have a fusion of powers hence we get abuse of powers.

In Hirst v UK (No2) within the UK part of the case is the 3 arms of the State; Executive, Parliament and Judiciary. As the UKSC forms part of the Judiciary, it must accept that it is just as guilty for the human rights violation identified in Hirst No2 as the Executive and Parliament.

The Supreme Court of the Russian Federation stated as follows:

“The Convention on Human Rights and Fundamental Freedoms has a mechanism of its own which includes a compulsory jurisdiction of the European Court on Human Rights and a systematic monitoring over the execution of the decisions of the Court by the Committee of Ministers of the Council of Europe. In accordance with paragraph 1 of Article 46 of the Convention these decisions with regard to the Russian Federation adopted finally shall be binding on all State bodies of the Russian Federation including the courts. The implementation of the decisions related to the Russian Federation presumes, if necessary, the obligation on the part of the State to take measures of a private nature aimed at eliminating violation of human rights stipulated by the Convention and the impact of these violations on the applicant as well as measures of a general nature to prevent repetition of such violations. The courts within their scope of competence should act so as to ensure the implementation of obligations of the State stemming from the participation of the Russian Federation in the Convention on Protection of Human Rights and Fundamental Freedoms.”

Note the binding nature upon all state bodies including the courts.

Why should a guilty party, the UKSC, not follow the ECtHR’s decisions? It beggars belief that the UKSC is arguing that the losing party should not be bound by the Court’s decision. Moreover, that the UKSC wants to be judge, jury and executioner in its own cause. The Convention was drafted to prevent dictatorships and the UKSC is crying because it is not allowed to become a authoritarian or totalitarian regime. Methinks that the UKSC doth protesteth too much!

For the UKSC to get legitimacy it must refuse to bow down to the doctrine of the sovereignty of Parliament. Otherwise we must have a human rights court and a constitutional court.

It may well be that the UKSC will get a chance to redeem itself. That is, if Hirst v Executive, Parliament and Judiciary (case no.1KH04685) goes all the way.

Given that both the MR and LCJ have spoken out against being inferior to the ECtHR, the case is destined for the CJEU, ECtHR or UKSC.

There is a strong human rights lobby pushing for the CJEU to become the next venue in Europe to be the the ultimate guardian of human rights in Europe. Other contenders are the ECtHR and national constitutional courts. As we neither have human rights courts nor constitutional courts in the UK, and because the UKSC is fettered by Parliament it cannot be trusted to be the guardian of peoples human rights. To be a player in Europe the UK can no longer stand on the sideline but must play by the rules of the game and play on the pitch.

Europe has concerns about the UK’s status as a failing State with its systemic failures. The structure is at fault. The UK does not guarantee all the human rights under the Convention, and fails to provide an effective remedy by a national authority for human rights violations.

For the UKSC to be taken seriously in Europe it needs to address the problem of the systemic failure. Neither the Executive nor Parliament is addressing the problem. That only leaves the UKSC to grasp the nettle. I suspect that the corruption runs too deep or there is a lack of courage. Either way the UKSC has no legitimacy to take the lead away from Europe, it must be content to be a follower.

Europe is providing an opportunity to the UK with the subsidiarity principle. However, both the Secretary of State for Justice and Attorney General have misinterpreted this to mean that Europe should let the UK abuse human rights unmolested. The only way Europe will allow this is for the UK to withdraw from the Council of Europe and European Union. Kenneth Clarke and Dominic Grieve have stated that the UK has no intention of doing this. Therefore, there is scope for the UKSC to make a legal declaration that it is the responsibility of all 3 arms of the State to guarantee the human rights under the Convention and remedy any breach of human rights.

Broadmoor patient Albert Haines loses appeal bid

Broadmoor patient Albert Haines loses appeal bid

Jerome Taylor

Wednesday, 26 October 2011

Albert Haines, the Broadmoor patient who made legal history by becoming the first person to have his mental health tribunal heard in public, has lost his bid for freedom after a panel of judges ruled that he still posed a threat to himself and the public.

The 53-year-old Londoner has been detained in secure hospitals for the past 25 years and says he has lost faith in a system that he believes has failed to heal him. He was sectioned under the mental health act in 1986 after he pleaded guilty to trying to attack staff at Maudsley psychiatric hospital with a machete and a knife.

In recent years his relationship with Broadmoor Hospital’s psychiatrists deteriorated to such an extent that last summer he took the highly unusual step of instructing his lawyers to request that his mental heath tribunal should be heard in public. Usually such hearings are held behind closed doors because they contain sensitive medical information about the patient.

Broadmoor hospital fought the application but the tribunal service recognised that he had the capacity to wave his confidentiality and ordered a fully open hearing to which both the public and press could attend. It was held last month over two days but the judgment was only released this morning.

In it the panel of three judges ruled that the nature of Mr Haines’ personality disorder meant he could not yet be released into a medium secure hospital or into the public.

The tribunal heard evidence from treating clinicians, hospital staff, Mr Haines himself and independent experts who painted a complex picture of his time at secure facilities.

Following his conviction he was sent to Broadmoor but was later moved to the medium security Three Bridges hospital where he made a number of visits into the community without incident. However, after a confrontation with staff, he was returned to Broadmoor and has since refused treatment in the belief that he no longer suffers from a personality or mental disorder. His lawyers argued that his trust in psychiatrists has been repeatedly dented by forced medication and numerous competing diagnoses over whether he has a mental disorder on top of his personality disorder.

The judges criticised Broadmoor for putting Mr Haines through a number of recent ward changes which they described as upsetting and “extremely unhelpful”. But they also added: “In our judgment the frequency and intensity of the incidents of irrational, hostile, abusive and aggressive behaviour cannot simply be explained by understandable frustration at the length of detention or by a reaction to ward moves”.

The tribunal heard how Mr Haines was regularly abusive and hostile towards hospital staff and was often the victim of physical assaults from fellow patients who would take exception to his confrontational nature.

The judges said they were powerless to offer treatment advice to Broadmoor but they urged staff nonetheless to “find a pathway” for Mr Haines so that he might feel like eventual release was a possibility. “He needs to be offered a clear pathway and to understand that progress through engaging with the treating team will provide that pathway,” they said.

The judges concluded: “It is in nobody’s interest that Mr Haines should have to be detained, whether in high or medium security, for a day longer than absolutely necessary. In our judgment detention does remain necessary, and we conclude by observing that it is likely to remain so unless the treating team are able to find a way of engaging Mr Haines, and that this will require an equal commitment by Mr Haines himself.”

Kate Luscombe, Mr Haines’ lawyer, was on her way to speak to her client this morning. She said she had already been instructed to appeal the decision.

“Mr Haines is disappointed that in assessing degree the First–tier Tribunal did not attach more weight to his argument that it is his mis-diagnosis, the duration of his detention, an attempt by those who treat him to re-introduce anti psychotic medication (including a forced injection under emergency powers) and enforced environmental factors that gives rise to his frustration and confrontational behaviour within the hospital setting,” she said.

She added: “A hospital order is not a punishment, its purpose is to ensure that an offender receives the medical care they need in the hope that the result will be to avoid the commission of further criminal acts. The aim of treatment is rehabilitation so the patient may return to society, rather than long term incarceration. After 25 years and an apparent failure in that time to treat Mr Haines’s challenging behaviour so that he remains in high security, the question arises as to whether the process of assessment and treatment has promoted the objective of rehabilitation.”

A spokesperson for West London Mental Health Trust, which runs Broadmoor hospital, said: "We're pleased that this process has reached its conclusion due to the extra burden its being public has placed on the Hospital's resources. We note that the decision concurs with the recommendations of Broadmoor Hospital's own, as well as independent, clinicians about the best treatment environment for the patient at this time. We also note the Tribunal's suggestion on 'finding a way in to treatment' to help the patient move forward in his life, and, as with all our patients, we will continue to seek ways of helping him to engage in order to progress his recovery."

Comment: If it walks like a duck...

Why are the nurses members of the Prison Officer's Association if it is a hospital? The hospital looks like a prison, and the regime is very similiar. I think it is disgusting to detain someone indefinitely on spurious risk to the public grounds. People have committed far worse crimes and not been detained anywhere near as long as this man. Shame on the system!

Corrupt female prison officer sentenced to 18 months

Corrupt female prison officer sentenced to 18 months

My headline reflects what the news story is about. The Daily Telegraph oddly runs with this headline Inmates won't leave the prison with PlayStations.

Daily Mail don't meddle in our human rights warns Jailhouselawyer

Daily Mail don't meddle in our human rights warns Jailhouselawyer

Jack Doyle writes:

'Don't meddle in our human rights'... and that's Ken Clarke lecturing EU judges!

European human rights judges should meddle less often in cases which have already been through Britain’s courts, Ken Clarke said last night.

It is the role of the judges of the European Court of Human Rights to hear cases by individuals of States or Member States alleging human rights violations by Member States. That is not meddling, rather it is Kenneth Clarke and the Daily Mail which is guilty of trying to meddle.

Generally speaking the ECtHR is not a court of first instance, and the rules require that applicants must exhaust all domestic remedies before applying for their cases to be heard by the ECtHR. The reason for this is to give Member States ample opportunity to remedy the alleged breaches of human rights before the ECtHR becomes involved. It is only when the Member States fail to remedy the alleged breaches of human rights does the ECtHR step in.

Once again, the Daily Mail refers to EU judges when this is not the case. Whilst judges at the Court of Justice of the European Union do hear cases involving elements of human rights, in this instance it is the ECtHR and not CJEU judges who Kenneth Clarke and the Daily Mail are attacking.

Jack Doyle continues: "Issuing a call for major reforms of the Strasbourg court, the Justice Secretary said it should concentrate on important cases instead of accepting ‘trivial’ ones".

I suspect that Kenneth Clarke is engaged in distraction politics because he is aware that the Interlaken process has been ongoing for a number of years and part of this process includes major reforms of the ECtHR. Part of this process also includes demanding that Member States which are failing engage in major reforms to their system. The ECtHR does not deal with trivial cases but only deals with serious cases of abuse of human rights. I suspect that Kenneth Clarke is referring to Hirst v UK (No2), the Prisoners Votes Case, as falling within his category of so-called trivial cases. It is so trivial that the UK has spent 6 years trying to wriggle off the hook.

Jack Doyle continues with his misinformation: "From next month, Britain will take the chairmanship of the Council of Europe, the court’s governing body, and ministers hope to use this to push through major reforms".

Next month the UK, not Britain, takes over the chairmanship of the Committee of Ministers, not chairmanship of the Council of Europe. The Court is independent and neither are its governing body. Given that Europe is seeking major reforms within the UK, all this talk of going in there and pushing for reforms will be resisted by those Member States who will tell the UK to clean up its own backyard.

Jack Doyle quotes Kenneth Clarke: ‘The biggest priority for the British Government as a whole is to try and get some reform of the European Court of Human Rights at Strasbourg. There’s a lot of support among other member states for reform and quite a lot of support in the court itself and in the Council of Europe.’

In my view, the biggest priority for the UK is to reform its own system, and fully comply with Hirst No2. As I have already pointed out, the Interlaken process is engaged with reforms of the ECtHR. Also, and the UK is not telling the media and public the truth about this, the Interlaken process deals with sanctions against failing Member States where there is systemic failure such as in the UK, where there is a danger of the UK being declared a rogue or pariah State.

Jack Doyle continues: "Speaking before the Home Affairs Committee of MPs, Mr Clarke said the court should ‘have a proper regard for the way Parliament and the courts in independent states have addressed human rights issues themselves in the first place’".

I would contend that the Court does have a proper regard for the way Parliaments and the courts in Member States of the Council of Europe have addressed human rights issues themselves in the first place. The first problem here is that the UK has failed to address human rights issues and as a result has been found guilty by the Court. The second problem is that instead of remedying the breach of human rights and preventing further breaches of human rights the UK has done nothing except complain about being found guilty and attacks the Court for reaching the right decisions. It is not for the guilty party to decide it is not guilty when the Court has reached a final decision in a case. A dictatorship and not a democracy demands to be judge, jury and executioner.

Jack Doyle continues: "Mr Grieve insisted social policy issues such as prisoner voting were for Parliament to decide, and the ECHR was wrong to overturn its will.

He announced he will argue the Government’s case when the ECHR considers votes for prisoners next month".

Dominic Grieve is wrong to claim that convicted prisoners human right to vote under Article 3 of the First Protocol of the Convention is a social policy issue. The ECtHR was right to attack Parliament's lack of will for reform. The ECtHR has already considered the issue of votes for prisoners in the leading case of Hirst No2 which Scoppola v Italy has followed. Dominic Grieve is trying to abuse due process by seeking to overturn a final decision in one case via another case. I trust that the ECtHR gives him short measure.

If the ECtHR bows down to a Member State and allows it to continue abusing human rights unchecked what is the point of having a court of human rights in the first place?

Turkish earthquake: Aftershock 'sparks jail riot'

Turkish earthquake: Aftershock 'sparks jail riot'

An aftershock has been blamed for sparking a riot in a Turkish prison in the eastern city of Van, one of the places worst hit by Sunday's devastating earthquake.

Inmate 'sorry' for wounding guards

Inmate 'sorry' for wounding guards

A triple killer who stabbed his prison guards apologised today for wounding three officers in a savage attack outside his cell.

However Kevan Thakrar accused prison officers of a "stitch-up" intended to ensure he spent the rest of his life behind bars.

The 24-year-old, who is on trial for attempted murder and wounding with intent, claimed there was a conspiracy of silence among prison staff with regard to assaults by prison officers on inmates.

The former student and shop assistant told a jury at Newcastle Crown Court prison officers operated according to a principal of "see no evil, hear no evil" when it came to their colleagues' "abuse of power".

He said he was denied food and sleep the night before he used a broken bottle of hot pepper sauce to maim officers Craig Wylde, Claire Lewis and Neil Walker at Frankland High Security Prison, County Durham, in March last year.

He said: "It is obviously wrong what happened, the individuals that have been hurt, and I am sorry for that, but it should not have come to that.

"If you put an animal in a cage and you poke it, poke it and poke it and then unlock the door it is not going to just sit there is it?"

Hirst v Executive, Parliament and Judiciary (case no.1KH04685)

Hirst v Executive, Parliament and Judiciary (case no.1KH04685)

UPDATE: Site Meter reports IP Address 194.60.38.# (Houses of Parliament) Search Words hirst v executive, parliament and judiciary case no. 1kh04685

High-security prison unit criticised for holding mentally ill inmates

High-security prison unit criticised for holding mentally ill inmates

Manager of Woodhill close supervision centre admits mental disorders 'not uncommon' in unit where inmate cut own ears of

A jail unit designed to hold disruptive inmates has been criticised for holding mentally ill prisoners, following incidents of self-harm.

The close supervision centre (CSC) at Woodhill prison in Milton Keynes was one of three units set up by the Labour government in 1998 to hold the most dangerous and disruptive inmates, but not those with mental health issues. Yet the unit's operational manager has confirmed in a letter seen by the Guardian that incidence of self-harm is high and it is holding prisoners who have mental health problems.

999 operator sacked after bungled emergency calls

999 operator sacked after bungled emergency calls

A police 999 operator has been sacked for bungling a string of emergency calls including incidents of domestic violence, suicide threats and rape.

Comment: Only sacked! And they wonder why the public has little confidence?

60 Elvis impersonators flee fire alarm

60 Elvis impersonators flee fire alarm

A group of 60 Elvis impersonators had to flee a charity fundraiser after a faulty smoke machine set off the fire alarm, it has been reported.

Comment: I bet they were all shook up.

Dominc Grieve in charge of the lightheaded brigade

Dominc Grieve in charge of the lightheaded brigade

Attorney general aims to limit European power over English law

Dominic Grieve to appear before the European court of human rights in Strasbourg to argue his case

Owen Bowcott legal affairs correspondent
guardian.co.uk, Monday 24 October 2011 20.54 BST

Dominic Grieve believes English and Welsh courts should have primary responsibility in interpreting its laws. Photograph: Paul Ellis/AFP/Getty Images

The attorney general is to appear before the European court of human rights in Strasbourg to argue that English and Welsh courts should have "primary responsibility" in interpreting its laws.

In a speech on Monday, Dominic Grieve QC tried to limit the European court's powers in enforcing those aspects of the European convention of human rights held to be contentious. Grieve's decision to address the grand chamber, the European court's upper house, next month on points raised by an Italian case of prisoners' voting rights, indicates that the government will challenge what it perceives as Strasbourg's authority.

But Grieve dismissed any call by rightwingers to withdraw from the convention, stressing that figures such as Winston Churchill were instrumental in its inception in the early 50s.

"The United Kingdom was the first country to ratify the Convention [in 1951]," Grieve said in his speech at Lincoln's Inn, central London. "The United Kingdom will not be the first country to leave the Convention."

Next month the UK takes up the rotating chairmanship of the governing body of the Council of Europe, the body that oversees the convention. Last week the Lord Chief Justice told the House of Lords that the British courts are not fully bound by Strasbourg decisions but must only "take them into account" and is not binding. Precisely what that entails is disputed.

Among recent human rights cases that have caused resentment, particularly among Tory MPs, was the decision that prisoners should be given voting rights. The government has not yet spelled out how it will implement it but has indicated that it will do the minimum necessary.

Grieve said that he wanted to strengthen the principle of subsidiarity, the idea that national jurisdictions should have greater powers to interpret convention rights.

In his speech, Grieve said: "The principle of subsidiarity is that national authorities of member states (that is, their governments, legislatures and courts) have the primary responsibility for guaranteeing and protecting human rights at a national level.

"The principle stresses the subsidiary nature of the supervisory mechanisms established by the convention, including the European Court of Human Rights, in achieving these aims.

"... Of course the United Kingdom should still be subject to the judgments of the Strasbourg court but the court should not normally need to intervene in cases that have already been properly considered by the national courts applying the convention.

"We need clarity. That is why the United Kingdom is intervening in Scoppola [the Italian prisoner voting case] before the Grand Chamber of the European Court of Human Rights.

"I am personally going to Strasbourg to plead the matter on behalf of the United Kingdom.

"I will argue that the principle of subsidiarity requires the court to accept that on issues of social policy such as prisoner voting, where strong, opposing reasonable views may be held and where parliament has fully debated the issue, the judgement as to the appropriate system of disenfranchisement of prisoners is for parliament and the court should not interfere with that judgement unless it is manifestly without reasonable foundation.

"And this is an argument that I would submit really cannot be advanced in respect of our national practice on this issue."

Comment: The Grand Chamber of the ECtHR is not the venue to argue a case at first instance within another case, Scoppola, on appeal on other grounds. Any changes sought by the AG must go through the Committee of Ministers of the Council of Europe, and Parliamentary Assembly of the Council of Europe.

It is also not the venue to challenge the Court's jurisdiction. Once again that is for those authorities I have listed above.

The UK may well have been the first country to ratify the Convention, but it took another 60 years before it incorporated a watered down Convention into domestic law. Greece left the Convention in the 1960s. The Council of Europe has accused David Cameron of acting like a Greek Colonel.

Dominic Grieve has a very narrow interpretation of the subsidiarity principle and is attempting to pick 'n' mix.

Dominic Grieve's arguments have legal flaws which a competent Attorney General should not be advancing. If I was one of the ECtHR judges, I would laugh the Court jester out of court.

UPDATE: Read the AG's speech in full here.

Hirst v Executive, Parliament and Judiciary (case no.1KH04685)

Hirst v Executive, Parliament and Judiciary (case no.1KH04685)

Ministers note that the division earlier this year urging the government to oppose giving prisoners the vote was an expression of opinion, not an instruction to action, and thus Ministers were able to roll with the punch.

On the contrary, Ministers will not be able to roll with this punch.

Today, the Hull County Court informed me that summonses have been issued in the case of Hirst v Executive, Parliament and Judiciary (case no.1KH04685).

I look forward to the responses of the Defendants.

NY correction officers plead guilty in teen death

NY correction officers plead guilty in teen death

Associated Press

NEW YORK — Two city Department of Correction officers pleaded guilty Friday to their roles in the beating death of a teenager at the hands of a brutal squad of inmates known as The Team.

Under the terms of the deal, Michael McKie and Khalid Nelson were spared lengthy prison sentences in exchange for guilty pleas to charges of assault and attempted assault, respectively, in the death of Christopher Robinson.

The officers worked in one of 10 jails that make up the sprawling correctional system on the 400-acre Rikers Island, which sits in the East River between Queens and the Bronx. Bronx prosecutors said the officers presided over a "Lord of the Flies"-style crew of inmates who enforced rules in one of the housing units through a campaign of bullying, intimidation and violence known as The Program.

Robinson, who was 18, had been sent to the jail after a parole violation. He was beaten to death by the inmates on Oct. 18, 2008, after he dared to defy the squad's authority, prosecutors said.

McKie, 33, faces two years in prison. Nelson, 37, will be sentenced to one year in jail. They had been accused of enterprise corruption and other charges and faced up to 50 years behind bars. They have been fired from the Department of Correction.

The victim's mother, Charnel Robinson, said Friday the guilty pleas helped restore some of her shattered faith in the criminal justice system.

"I can't say I have closure, because it is very hard for me to come to terms with the fact that my only child is deceased," she said. "But I'm very grateful, and I have a newfound respect for the system, after my son was brutally murdered in the care of the state."

Robinson said the pleas give her strength. Her attorney Sanford Rubenstein said a civil lawsuit against the city is now moving forward.

"Let these guilty pleas send a message to correction officers throughout this country that if you are involved in a scheme which results in the wrongful death of an inmate you will go to jail," he said.

Following the teen's death, Mayor Michael Bloomberg signed a law that requires the correction department, which runs the city's jails, to publicly disclose statistics on violence against incarcerated teens, whether committed by staff or by other inmates. The law is meant to help expose possible violence in city facilities that house adolescent inmates.

The Rikers Island complex holds about 13,000 people per day. Inmates are separated according to age, but teenagers charged as adults and between the ages of 16 and 18 are housed there.

The Department of Correction issued a statement saying it holds its workforce to the highest standards of professionalism.

"The unlawful actions of the very few should not undercut the daily contributions of the city's 8,500 uniformed men and women who perform their duties with excellence," the statement read.

McKie and Nelson will be sentenced Jan. 17. Bronx District Attorney Robert Johnson said there was no evidence to link the officers to Robinson's death despite their link to The Program.

"The behavior of the correction officers was worse than that of some of the young detainees under their supervision," he said. "What is most disturbing, however, is that his conduct turned a detention facility for adolescents into an incubator for violent criminal activity sanctioned by adults."

Cases are pending for a third former officer and seven inmates. Five inmates have pleaded guilty and were sentenced to additional prison terms.

—Copyright 2011 Associated Press

Comment: I think the plea deal of reducing sentences down from 50 years to 2 years and 1 year respectively stinks to high heaven! A reduction in sentence for an early guilty plea yes, let off with a slap on the wrists no!

Midnight Sun - Iceland

Midnight Sun | Iceland from SCIENTIFANTASTIC on Vimeo.

Hat-tip to John Bolch at Family Lore blog

I can't get no satisfaction...just or otherwise

I can't get no satisfaction...just or otherwise

90. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

91. The applicant claimed 5,000 pounds sterling (GBP) for suffering and distress caused by the violation.

92. The Government were of the view that any finding of a violation should in itself constitute just satisfaction for the applicant. If alternatively the Court were to make an award, it considered the amount should not be more than GBP 1,000.

93. The Chamber found as follows (see paragraph 60 of the Chamber judgment):

“The Court has considered below the applicant’s claims for his own costs in the proceedings. As regards non-pecuniary damage, the Court notes that it will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations to secure the right to vote in compliance with this judgment. In the circumstances, it considers that this may be regarded as providing the applicant with just satisfaction for the breach in this case.”

94. Like the Chamber, the Court does not award any monetary compensation under this head.

In my view, I believe that the ECtHR should have awarded me monetary compensation of at least £1,000. Even the government accepted that this would be the appropriate amount in damages. The Court found that there had been a violation. The internal law of the UK as it stood at the time of my case and as it stands now does not allow any reparation to be made, let alone only partial reparation to be made, therefore the Court should have then and even now should award me just satisfaction.

How long is a piece of string? Given "the Court notes that it will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations to secure the right to vote in compliance with this judgment", surely undue delay does not constitute due course? The UK has deliberately strung this out.

The UK has failed to implement any measures to fulfil its obligations to secure the right to vote to all convicted prisoners.

The UK has embarked upon a course which is not due to ignore fully complying with the judgment in my case.

PRACTICE DIRECTION
JUST SATISFACTION CLAIMS

According to Lord Woolf: “Where an infringement of an individual's human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance”(para 53).

According to Lord Bingham: “The primary aim of the European Convention was to promote uniform protection of certain fundamental human rights among the member states of the Council of Europe...The expectation therefore is, and has always been, that a member state found to have violated the Convention will act promptly to prevent a repetition of the violation, and in this way the primary object of the Convention is served”(paras 3 and 5).

Clearly my legitimate expectation has not been met, the UK has not acted promptly and as a result there has been a repetition of the violation.